Papers on Parliament No. 43, June 2005 Reference of Bills to Australian Senate Committees With particular reference to the role of the Selection of Bills Committee JOHN VANDER WYK and ANGIE LILLEY John Vander Wyk is Clerk Assistant (Committees) in the Department of the Senate, and was previously Clerk Assistant (Table). In the latter position he was secretary to the Selection of Bills Committee. Research support and appendices by Angie Lilley Programming Officer in the Senate Table Office DEPARTMENT OF THE SENATE Published and printed by the Department of the Senate, 2005 Papers on Parliament is edited and managed by the Research Section, Department of the Senate. Edited by Kay Walsh All inquiries should be made to: Assistant Director of Research Procedure Office Department of the Senate Parliament House CANBERRA ACT 2600 Telephone: (02) 6277 3164 ISSN 1031–976X ii Contents 1 Introduction 1 2 Some Preliminary Considerations 2 3 An Historical Perspective 4 Standing order 196A (1934) 5 Legislative and general purpose standing committees (1970) 5 Sessional order (1978) 6 Informal reviews (1982 and 1984) 7 Select Committee on Legislation Procedures (1988) 8 4 The Selection of Bills Committee 11 Establishment of the committee (1990) 11 Operations 15 Formative years 17 Meeting times for committees to consider bills 21 Committees to which bills referred 23 Stages for the reference of a bill 23 Reporting dates 26 5 Consideration of Bills by Standing and Select Committees 31 Minority/dissenting reports 32 Recommendations 32 Types of amendments recommended 33 Committee inquiries 34 Size of reports 34 Experiences and highlights 35 Use of reports on bills in the chamber 43 6 Conclusions 45 Tables 50 Appendices 67 Contents of previous issues of Papers on Parliament 153 List of Senate Briefs 162 To order copies of Papers on Parliament 163 iii Tables 1 Total number of bills in the Senate each year from 1970, and total references to committees 52 2 Reference of bills to committees–Summary 1990–2001 53 3 Selection of Bills Committee–Summary of activity 54 4 Bills and packages of bills referred to committees by the Senate 55 5 Bills and packages of bills referred through Selection of Bills Committee–Stage at which referred 56 6 Bills and packages of bills referred through the Selection of Bills Committee–Bills and provisions of bills 57 7 Bills and packages of bills referred through the Selection of Bills Committee–Length of committee inquiries 58 8 Bills and packages of bills referred through the Selection of Bills Committee–Length of extensions of time granted to committees to report 59 9 Bills and packages of bills referred through the Selection of Bills Committee–Number of extensions of time granted to committees to report 60 10 Bills and packages of bills referred through the Selection of Bills Committee–Reports from committees 61 11 Bills and packages of bills referred through the Selection of Bills Committee–Reports and their recommendations 62 12 Bills and packages of bills referred through the Selection of Bills Committee–Reports recommending amendments to bills 63 13 Bills and packages of bills referred through the Selection of Bills Committee–Attendance of ministers at committee hearings, and numbers of public hearings held 64 14 Bills and packages of bills referred through the Selection of Bills Committee–Size of reports 65 15 Bills and packages of bills referred through the Selection of Bills Committee–Consideration of committee reports in the chamber, 1990–92 66 Appendices 1 Bills referred to committees by Senate 1901–1989 69 2 Bills, or provisions of bills, referred to committees on recommendation of Selection of Bills Committee 1990–2001 76 3 Bills, or provisions of bills, referred to committees directly by Senate 1990–2001 136 iv Note References of bills to committees over the years have taken various forms, and not all have been amenable to the classifications and tabulations used in this paper. Committee reports have not always been as clear as they could be in differentiating conclusions, recommendations and suggestions, and in identifying or proposing amendments. Of necessity, the author has had to make determinations based on his assessment of the intended outcome. Any errors in interpretation or classification, as well as any errors of fact, are entirely his. v Bills to Senate Committees 1 Introduction A house of parliament refers bills to committees usually to facilitate more effective scrutiny and to enable better use to be made of the time of the house. If a system of referring bills to committees is to be effective, the system itself must not unduly take the time of the house, and it must be acceptable to, and be able to be used by, all parties. The Senate has referred bills to committees mainly from the 1970s, coinciding with the establishment of a comprehensive system of legislative and general purpose standing committees in 1970. In the period 1970 to 1989 references to these committees were made by the Senate on the initiative of individual senators, and comprised only a small percentage of the total bills considered by the Senate. While the committees to examine bills were in place, with appropriate powers to undertake their examination, there was no system for determining which bills should be referred to them. The references were essentially ad hoc. This and other perceived shortcomings relating to committee consideration of bills were the subject of considerable review and debate in the 1980s, which culminated in the establishment in 1988 of the Select Committee on Legislation Procedures to report on a range of issues, including changes in procedures to facilitate the referral of bills to committees, their consideration by committees and the expediting of Senate consideration of bills. The committee, in a report in December 1988, made a number of recommendations which, together and for the first time, established a system for the reference of bills to committees. The Senate adopted the recommendations with minor modifications in late 1989, at a time of greater preparedness on its part to refer bills to committees. The recommendations came into effect in 1990. The key to the system was the establishment of a Selection of Bills Committee which was to examine all bills and recommend to the Senate those to be referred, the stage at which they were to be referred, the committee to which they were to be referred and a reporting date. This paper examines the work of the committee in its first 12 years. This period, 1990 to 2001, covers four parliaments—two with ALP governments and two with Liberal/National Party governments. The paper examines the early years of operation of the Selection of Bills Committee, its development—particularly after further changes to the committee system in 1994, and whether it has made a difference to the effective work of the Senate. It draws some conclusions about the effectiveness of the current system for referring bills to committees. And it suggests that an original aim of the 1990 changes that is yet to be achieved, namely the substitution, where practicable, of standing committee consideration of bills for committee of the whole consideration, is an aim worth revisiting. 1 _____________________________________________________________________ This paper is essentially a study of the mechanics of the system for referring bills to committees, and does not attempt any detailed analysis of the benefits for legislation and public policy of committee review of bills. That is a subject worthy of, and overdue for, a separate study. To prepare for the paper it was necessary to trace and record essential details on the reference by the Senate of every bill to a committee in the period 1990 to 2001. This detail is in Appendices 2 and 3. Appendix 1 completes the historical record by setting out similar details for bills referred by the Senate in the period 1901–1989. The appendices are the basis for the tables at the end of this paper, which are referred to in the course of the paper. The material in the appendices has been included because it is a valuable resource which is not readily available elsewhere, and which may encourage and be useful in further studies. In the following, the paper addresses some preliminary issues, provides a historical context, and then traces the commencement and development of the Selection of Bills Committee. After an examination of the implementation of the terms of reference of the committee, the paper looks at how committees have dealt with the bills referred to them through the Selection of Bills Committee, including a brief review of the limited extent to which reports from committees have been formally included in subsequent Senate consideration of bills referred. 2 Some preliminary considerations Careful scrutiny and review of proposed legislation produces better legislation. For the purposes of this paper, that is taken as a given. Such scrutiny and review is done more effectively by a committee of interested and knowledgeable legislators than a plenary body—particularly where a committee is able to seek input in a more flexible and far-reaching manner than by the more formal processes of a plenary body. Bills, or specific aspects of bills, are usually referred to committees for review of their principles or the broad policies being implemented, or of particular details of the implementation, or both. Review of a bill may result in recommendations to accept or reject the bill or to make specific amendments. At a minimum, the benefits of committee review include the identification of technical deficiencies and unintended (from the point of view of the proponent of the bill) consequences. The possibility that a bill will undergo committee scrutiny may in itself cause the initial drafting to be done more carefully and with more thought to issues which could be raised in committee consideration.